A small share of blame for reporting the presence of official
secrecy might go to the Circuit Court clerks and the photocopy
service for asserting that this motion was filed under seal. But
given the nature of the filing, it is beyond ken that this filing
would be under seal, and I have to take full responsibility for
repeating via post that "the DJ Motion of December 20 was filed
under seal." Additional research was certainly called for before
piping up, and additional research resulted in finding that the
filing was not under seal.

To the notion that this filing will produce something useful to
the Libby trial, I have a one-word response. "Nonsense." The
Court (with Fitzgerald's agreement) already released more
than
Dow Jones asked for in November, 2005 (Dow Jones didn't ask
then for the release of affidavits, it asked only for release of
redacted portions of the Opinion), and the Court released
everything in the "Motion to Compel Reporter Testimony"
that related to the prosecution of Libby. Any further releases
are irrelevant to the question of whether or not Libby lied to
investigators.

As to the notion that grand jury testimony relating to
investigation of Rove should become public, based on Rove's
admission, Armitage coming clean, and other public revelations to
date, I assume the Court will reject the notion and the motion.
The court and grand jury won't "lead" the publication of secret
testimony, although they may well (and should) follow. Sure, we
might see revelations such as "Karl Rove testified on such and so
date," and technically, that constitutes the Court releasing
more information. But I don't expect a release that
documents why the Special Counsel was considering Rove as a target
for a false statements and/or perjury charge, and I think that's
what the bulk of the redactions comprise.

Transcribed by hand with only a spell check as a crutch. Blame
me for typos, but pin your substantive criticism on Theodore J.
Boutrous, Jr., Thomas H. Dupree, Jr. and Jack M. Weiss, all of
Gibson, Dunn & Crutcher, LLP.

... ---oooOOO===OOOooo--- ...

MOTION OF AMICI CURIAE DOW JONESAND THE ASSOCIATED PRESS TO UNSEAL

More than three years ago, the Deputy Attorney
General of the United States appointed United States Attorney
Patrick Fitzgerald to investigate the disclosure of the identity
of CIA operative Valerie Plame. The principle questions at the
time were whether the disclosure of Ms. Plame's identity was part
of a concerted effort originating in the White House to discredit
her husband, who was a critic of the President's war policies,
and whether the disclosure violated federal criminal laws,
including the Intelligence Identities Protection Act. As part of
his investigation, the Special Counsel obtained orders compelling
two reporters to disclose their conversations with confidential
sources or be imprisoned; those orders ultimately led to one of
the reporters being imprisoned for nearly three months.

Recently, the public learned that the Special
Counsel's pursuit of those reporters was entirely unnecessary for
him to determine who had leaked Ms. Plame's name to Robert Novak,
the columnist who had first published it. The public now knows
that the Special Counsel knew the identity of that leaker --
Richard Armitage, the former Deputy Secretary of State -- from
the very beginning of his investigation.

This development regarding Mr. Armitage, along with
recent public statements by the attorney for presidential advisor
Karl Rove that the Special

Counsel has advised that Mr. Rove will not be charged in
connection with this matter, justify releasing the remaining
sealed portions of Judge Tatel's opinion in this case, as well as
the Special Counsel's sealed affidavits. This will allow the
public to gain a full understanding of the Special Counsel's
arguments to the Court as to why it was necessary to compel the
testimony of two reporters, and why it was necessary to imprison
one of those journalists for 85 days for refusing to divulge her
conversations with a different government official, I. Lewis
"Scooter" Libby.

Accordingly, pursuant to Fed. R. App. P. 27 and
D.C. Circuit Rules 27 and 47.1, amici Dow Jones & Company,
Inc. and the Associated Press respectfully move this Court to
unseal all or some of the remaining redacted portions of Judge
Tatel's opinion and the Special Counsel's sealed affidavits in
this case. See
In re Grand Jury Subpoena, Judith Miller,
438 F.3d 1138 (D.C. Cir. 2006)(ordering some, but not all, of
these materials to be unsealed and stating that the Court would
consider unsealing additional portions as the matter progressed).
1

--1 Dow Jones and the Associated Press filed their
corporate disclosure statements in their amicus brief
submitted October 25, 2004.

2

BACKGROUND

This case arises from the disclosure of Valerie
Plame's identity as a CIA operative. On February 15, 2005, a
panel of this Court affirmed the district court's refusal to
quash grand jury subpoenas issued to New York Times
reporter Judith Miller, Time magazine reporter Matthew Cooper,
and Time, Inc.

In so holding, the panel split three ways as to
whether the common law and Federal Rule of Evidence 501
recognized a reporter's confidential source privilege. The panel
agreed, however, that "if [a common law] privilege applies here,
it has been overcome" by the Special Counsel's ex parte
evidentiary proffer that purportedly established the need for the
reporters' testimony and documents. 397 F.3d at 973. The panel
stated that on this point it was adopting the reasoning of Judge
Tatel's concurring opinion, which devoted eight pages to
explaining how the Special Counsel, with his "voluminous
classified filings," had "met his burden of demonstrating that
the information [sought from reporters] is both critical and
unobtainable from any other source."
397 F.3d at 1002 (Tatel, J., concurring). Those pages,
however, which comprised eight pages of the slip opinion, were
redacted from the versions of the opinion made available to the
reporters and the public on the basis that they contained
nonpublic grand jury information protected from disclosure
pursuant to Federal Rule of Criminal Procedure 6(e).
397 F.3d at 1002.

3

On November 2, 2005, in the wake of the grand
jury's indictment of Mr. Libby, the former Chief of Staff to the
Vice President of the United States, Dow Jones moved to unseal
Judge Tatel's opinion in full or in part. On February 3, 2006,
this Court granted the motion, unsealing certain portions of
Judge Tatel's opinion, along with portions of one of the Special
Counsel's affidavits that set forth his alleged need for
reporters' testimony. See
In re Grand Jury Subpoena, 438 F.3d 1138. The Court
explained that "there is no longer any need to keep significant
portions of the eight pages under seal," given that "Libby's
indictment, now part of the public record, reveals some grand
jury matters, and we see little purpose in protecting the secrecy
of grand jury proceedings that are no longer secret."
Id. at 1140. Thus, the Court "unseal[ed] those
portions containing grand jury matters that the special counsel
confirmed in the indictment or that have been widely reported."
Id. The Court also unsealed "parts of one of the
special counsel's affidavits upon which [it] relied in concluding
that Miller's evidence was critical to the grand jury
investigation," explaining that '[i]f the public is to see our
reasoning, it should also see what informed that reasoning."
Id.

The Court declined, however, to unseal the entirety
of Judge Tatel's opinion or the Special Counsel's affidavits/ The
Court noted that unsealing additional portions of these documents
could identify witnesses or jeopardize the Special Counsel's
ongoing investigation.
Id. at 1141. But the Court recognized that

4

additional public disclosure could warrant unsealing the
remaining portions of the opinion and affidavits, and thus
emphasized that "[t]his order is without prejudice to Dow Jones's
right to move to unseal additional materials at a later date."
Id.

Subsequent to this Court's February 2006 ruling,
two significant events have occurred that appear to warrant the
unsealing of additional materials. First, former
Deputy Secretary of State Richard Armitage has publicly disclosed
that he was the source of the leak that led to the first public
disclosure of the CIA affiliation of Valerie Plame. See
Transcript of CBS Evening News at 3-4 (sept 7, 2006) (Attached as
Exh. A); David Johnston, Source in C.I.A. Leak Case Voices
Remorse, N.Y.Times (Sept. 8, 2006)(attached as Exh. B). Mr.
Armitage has publicly stated that he told FBI investigators that
he was the person who told columnist Robert Novak that Ms. Plame
worked at the CIA, and that he also discussed Ms. Plame with
Washington Post reporter Bob Woodward. Id. Mr. Armitage
further stated that he disclosed his role in October 2003, but
that Special Counsel "asked me not to discuss this and I honored
his request." Exh A at 4; Exh. B at 2. He added that the Special
Counsel has now given him permission to discuss these matters
publicly. See Exh. B at 2 ("This week, after news reports
clearly identified him as the source, Mr. Armitage said Mr.
Fitzgerald had consented to his public disclosure of his role.");
see also Robert Novak, My Role in the Plame Leak
Probe, Chi. Sun-

Second, an attorney for presidential
advisor Karl Rove has publicly disclosed that Mr. Rove was
advised by the Special Counsel that he will not be charged in
connection with this matter. See CNN.com, Lawyer: Rove
won't be charged in CIA leak case (June 13, 2006)(attached as
Exh. E)("White House senior advisor Karl Rove has been told by
Special Counsel Patrick Fitzgerald that he will not be charged in
the CIA leak case, according to Robert Luskin, Rove's lawyer.").
Moreover, Matthew Cooper and Robert Novak have revealed their own
testimony concerning Mr. Rove. See Matthew Cooper,
What I Told the Grand Jury, Time, July 25, 2005, at 38;
Novak, My Role in the Plame Leak Probe, Chi. Sun-Times
(July 12, 2006).

ARGUMENT

As this Court has explained in its prior order in
this case, "[g]rand jury secrecy is not unyielding," and thus
"[j]udicial materials describing grand jury information must
remain secret only 'to the extent and as long as
necessary to prevent the unauthorized disclosure of a
matter occurring before a grand jury.'"
438 F.3d at 1140 (quoting Fed. R. Crim. P. 6(c)(6))(emphasis
added by the Court). The Court

6

noted that its precedent "reflects the common-sense proposition
that secrecy is no longer 'necessary' when the contents of grand
jury matters have become public" 438 F.3d at 1140. Indeed,
"'[t]here must come a time . . . when information s sufficiently
widely known that it has lost its character as Rule 6(e)
material.'" Id. (quoting In re North, 16 F. 3d
1234, 1245 (D.C. Cir. 1994)). See also In re: Motions of Dow
Jones & Co., 142 F.3d 496, 502 (D.C. Cir. 1998)(public
disclosure of grand jury materials is warranted if doing so will
not endanger grand jury secrecy, and "Rule 6(e)(5) contemplates
that this shall be done")(emphasis added).

Here, the public statements of Mr. Armitage and Mr.
Rove's lawyer strongly suggest that additional portions of Judge
Tatel's concurrence and the Special Counsel's affidavits may now
be unsealed. Where, as here, the witnesses themselves have made
grand jury information widely known, continued secrecy is
unwarranted. In In re: Motions of Dow Jones & Co., for
example, the Court held that secrecy was in appropriate when a
witness' attorney "virtually proclaimed from the rooftops that
his client had been subpoenaed to testify before the grand jury."
142 F.3d at 505. The Court noted that the witness' "identity as
a person subpoenaed to appear before the grand jury has become
[public] information, not because of press reports relying on
unnamed sources, but because [the witness'] attorney decided to
reveal this fact to the public." Id.

7

In this case, Mr. Armitage has publicly revealed
that he was the source of the leak that led to the first public
disclosure of Ms. Plame's identity; that he told FBI
investigators of this fact in October 2003, before the Special
Counsel had even been appointed; and that Special Counsel asked
him not to publicly discuss the matter, but recently released him
from that promise. Likewise, Mr. Rove's lawyer has publicly
revealed that Mr. Rove is not a target f the investigation and
will not be charged in this case. These disclosures strongly
suggest that additional portions of Judge Tatel's opinion and the
Special Counsel's affidavits can be released without compromising
the interests protected by Rule 6(e). See
In re Grand Jury Subpoena, 438 F.3d at 1141 (declining to
unseal additional material because "publication at this juncture
could identify witnesses, reveal the substance of their
testimony, and -- worse still -- damage the reputations of
individuals who may never be charged with crimes");
id. (noting the need to protect information concerning
witnesses' "role in the investigation"). Although the Court in
its prior order noted that the fact that "the special counsel's
investigation is ongoing only heightens the need for maintaining
grand jury secrecy,"
id., it now appears that the Special
Counsel's investigation is over.

These proceedings involve a matter of great public
importance that has already received considerable publicity and
public attention. In Washington Post v. Robinson, 935
F.2d 282 (D.C. Cir. 1991), this Court emphasized "the critical

These considerations carry special force here,
where the criminal justice process has embroiled officials at the
highest levels of the United States government and forced
journalists to testify about their confidential sources.
Unsealing the redacted portions of Jude Tatel's opinion and the
Special Counsel's affidavits will enable the public to scrutinize
the basis for this Court's ruling that any common law reporter's
privilege was overcome. Furthermore, it will help the public
understand the basis for the appointment of the Special Counsel
and the Special Counsel's determination and argument that,
notwithstanding Mr. Armitage's revelation in October 2003, he
viewed it necessary to compel testimony from Ms. Miller and Mr.
Cooper -- and force the imprisonment of Ms. Miller -- to fulfill
his investigatory mandate.

9

CONCLUSION

For all the reasons set forth above, this Court
should now unseal Judge Tatel's opinion and the Special Counsel's
affidavits in their entirety or, at a minimum, unseal those
portions that concern Mr. Armitage and Mr. Rove and that are no
longer protected under Rule 6(e).